A Matter of Facts: The Evolution of Copyright’s Fact-Exclusion and Its Implications for Disinformation and Democracy

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them deal with facts per se but instead with adjacent and related copyright doctrines. A close look at these cases, as well as at relevant legislative history, uncovers provocative aspects of the fight over facts through the nineteenth and twentieth centuries. This fight is really a debate over the evolving place of human labor and the contours of social progress regarding the production of facts in crucial periods of economic and political development. The nature of “facts” and their increasingly central role in governance and technological progress puts pressure on their control and manipulation, including by and for businesses and democratic institutions, such as legislatures and agencies. Revisiting this history amplifies the need for a broader copyright fact-exclusion and a richer public domain that will lead to doctrinal clarity for our digital age. It also has political implications for how to consider the contestability of facts in the twenty-first century as a matter of access to information and the stabilization of societal institutions – such as law, science, and a free press – that are critical for sustaining U.S. democracy

Most Blessed of the Patriarchs : Thomas Jefferson and the Empire of the Imagination

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Historical Fact

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Haitian Revolution and French Translations of American Constitutions in the 1790s and/or A History of Campus Speech and Institutional Neutrality in the 1960s

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Rules & Laws for Civil Actions: 2024 Ed.

2024 Edition Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor explaining its significance and background. Students are able to access the online and digital versions of the resource free of charge.https://scholarship.law.bu.edu/books/1360/thumbnail.jp

Federal War-Time Prosecutions Based on Implied Presidential Powers and The Law of Nations - Without Any Federal Statutes, 1790s

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Rahimi, the Second Amendment, Domestic Violence, and Originalism After Bruen

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Vice Patrol: Cops, Courts, and the Struggle Over Urban Gay Life Before Stonewall

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Demand the Impossible: One Lawyer\u27s Pursuit of Equal Justice for All

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Privacy Nicks: How the Law Normalizes Surveillance

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in normalizing surveillance. Privacy law helps acclimate people to being watched by ignoring smaller, more frequent, and more mundane privacy diminutions. We call these reductions “privacy nicks,” like the proverbial “thousand cuts” that lead to death.Privacy nicks come from the proliferation of cameras and biometric sensors on doorbells, glasses, and watches, and the drift of surveillance and data analytics into new areas of our lives like travel, exercise, and social gatherings. Under our theory of privacy nicks as the Achilles heel of surveillance law, invasive practices become routine through repeated exposures that acclimate us to being vulnerable and watched in increasingly intimate ways. With acclimation comes resignation, and this shift in attitude biases how citizens and lawmakers view reasonable measures and fair tradeoffs.Because the law looks to norms and people’s expectations to set thresholds for what counts as a privacy violation, the normalization of these nicks results in a constant re-negotiation of privacy standards to society’s disadvantage. When this happens, the legal and social threshold for rejecting invasive new practices keeps getting redrawn, excusing ever more aggressive intrusions. In effect, the test of what privacy law allows is whatever people will tolerate. There is no rule to stop us from tolerating everything. This article provides a new theory and terminology to understand where privacy law falls short and suggests a way to escape the current surveillance spiral